Dean Warren
There’s been a lot of labour law stuff involving pro sports lately. There’s a case ongoing at the Labour Board this week involving an ex-pro NHL ref who claims he was dismissed by the NHL for being a executive and activist in the referees’ union. The story in the Toronto Star Globe describes the legal action as a ‘wrongful dismissal’, but that it is not what it is. A wrongful dismissal lawsuit is an action filed in a court alleging dismissal without reasonable notice. That is not what is happening here.
This legal dispute is actually an unfair labour practice complaint filed under the Labour Relations Act alleging that the employee was dismissed for union activity. The complaint no doubt alleges a breach of one or more of sections 70, 72, and 76 of the Act, all of which prohibit employers from punishing employees in any way because they support a union or are active in the union’s activities.
The referee (Dean Warren), alleges that he was a good ref, received good evaluations throughout his employment, and good playoff game assignments, until suddenly all that stopped and he was dismissed for cause (incompetence). He alleges that the employer did a sudden turn in its assessment of his abilities soon after he accepted a position in the Refs union. The employer argues that he was just a lousy ref.
Of course, the employer will never admit that the dismissal had anything to do union activity. Employers will always present another reason. The Labour Board has to sort out what is the truth. And, in doing so, the odds are stacked against the employer in cases like this. That’s because the legislation creates a reverse onus on the employer to establish that the employee’s union activity played absolutely no role whatsoever in the employer’s decision to dismiss the employee (see section 96(5)). When an employer’s assessment of an employee suddenly changes around the time that the employee becomes involved in a union, the Labour Board becomes very suspicious.
My gut reaction from reading the stories in the media and from litigating lots of these case myself is that the NHL may be in trouble here. But we have to wait and see how all of the facts come out. Note the remedy though. If the Board finds that part of the reason ref Warren was fired was his union activity, the Board can order him reinstated with full back pay. Section 96(4) gives the Board that power. Does that mean he’ll be back on the ice? Reinstatement is something that a court does not order in a wrongful dismissal case.